N O

. 01 -14- 00675

- CR N O

. 01

- 14

- 0067 6- CR

I N T HE C OURT OF A PPEALS F OR THE F IRST D ISTRICT OF T EXAS

I SR AE L M ONTOYA A LCARAZ Appellant

v

.

THE S TATE OF T EXAS Appellee

On Appeal from Cause Number s 1394947 & 1394948 From the 174th District Court of Harris County, Texas

B RIEF FOR A PPELLANT

O RAL A RGUMENT W AIVED A LEXANDER B UNIN Chief Public Defender Harris County, Texas

A

NGELA L. C AMERON Assistant Public Defender Harris County, Tex as TBN 00788672 1201 Franklin, 13 th Floor Houston, Texas 77002 Phone: (713) 368

- 0016 Fax: (713) 368

- 9278
Counsel for Appellant ACCEPTED 01-14-00675-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/3/2015 10:27:01 AM CHRISTOPHER PRINE

CLERK2 I DENTITY OF P ARTIES AND C OUNSEL

APPELLANT : Isr ael Montoya Alcaraz TDC # 01942296 Telford Unit 3899 Hwy 98 New Boston, Texas 75570

TRIAL PROSECUTOR: Amy McCauley Assistant District Attorney Harris County, Texas 1201 Franklin Avenue Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL: Mark Thering 1305 Prairie Houston, Texas 77 002

PRESIDING JUDGE: Hon. Ruben Guerrero 174th District Court Harris County, Texas 1201 Franklin Avenu e, 19 th floor Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT: Angela Cameron Assistant Public Defender Harris County, Texas 1201 Franklin Avenue, 13 th floor Houston, Texas 770023 TABLE OF C ONTENTS

IDENTIT Y OF PARTIES AND COUNSEL

................................ ................................ .. 2

TABLE OF CONTENTS

................................ ................................ ................................ .... 3

INDEX OF AUTHORITIES

................................ ................................ .............................. 4

STATEMENT OF THE CASE

................................ ................................ .......................... 5

ISSUE S PRESENTED

................................ ................................ ................................ ......... 6

STATEMENT OF FACTS

................................ ................................ ................................ .. 7

SUMMARY OF THE ARGUMENT

................................ ................................ ................. 8

ISSUE ONE

................................ ................................ ................................ ........................... 9
The DNA court cost assessed against Appellant is an unconstitutional

tax on Appellant.

Preservation of Error

................................ ................................ ................................ . 9 Applicable Law

................................ ................................ ................................ ............ 9

ISSUE T WO

................................ ................................ ................................ ......................... 1 2

The written judgments should be modified to remove a Sheriff’s fee that is not supported by the record.

ISSUE T HREE

................................ ................................ ................................ ................... 1 2
The written judgments should be reformed to correctly reflect Appellant has the right to appeal.

PRAYER

................................ ................................ ................................ ............................... 14

CERTIFICATE OF SERVICE

................................ ................................ ......................... 15

CERTIFICATE OF COMPLIANCE

................................ ................................ .............. 164 I NDEX OF A UTHORITIES
Cases

Asberry v. State, 813 S.W.2d 526 ( Tex. App.

– Dallas 1991, pet. ref'd)

........................... 13

Cardenas v. State , 423 S.W.3d 396 (Tex. Crim. App. 2014)

................................ ................. 9

Evans v. State , No. 01

- 11

- 00021

- CR, 2012 WL 1379632 (Tex. App.

– Houston [1st Dist.] April 19, 2012, no pet.)(mem. op. not designated for publication)

................. 13

Ex parte Carson , 159 S.W.2d 126 (1942)

................................ ................................ ............. 10

Jo hnson v. State , 423 S.W.3d 385 (Tex. Crim. App. 2014)

................................ ................... 9

Nolan v. State, 39 S.W.3d 697 (Tex. App.

– Houston [1st Dist.] 2001, no pet.)

............ 13
Peraza v. State , No. 01

- 12

- 00690

- CR, 2014 WL 7476214 (Tex. App.

– Houston [1 st Dist.] Dec. 30, 2014, no. pet. h. )

................................ ................................ .... 8, 10, 11, 12

Statutes
Tex. Code Crim. Proc. art 102.001(a)(1)

................................ ................................ .......... 12
Tex. Code Crim. Proc. art. 102.020(a)(1)

................................ ................................ ............. 9

Tex. Code Crim. Proc. art. 102.020(h).

................................ ................................ .............. 11

Tex. Code Crim. Proc. art. 10 3 .00 8

. ................................ ................................ ..................... 9
Tex. Gov't Code Ann. § 411.1471 (a)( 1 )

................................ ................................ .......... 9, 10

Tex. Gov't Code Ann. §772.006(a)(2)

................................ ................................ ............... 115 S TATEMENT OF THE C ASE

Mr. Alcaraz was indicted for Aggravated Sexual Assault of Child and
Possession of Child Pornography (C.R. 1 at 25 ) (C.R. 2 at 16)

. 1 Alcaraz pled guilty
without an agreed recommendation and his case s w ere set for a presentence
investigation hearing. (C.R. 1 at 32) (C.R. 2 at 24). Following a presentence
investig ation hearing, the trial court sentenced Alcaraz to 50 years confinement in the
Texas Department of Criminal Justice in the sexual assault case and 10 years
confinement in the child pornography case. (C.R. 1 at 62 ) (C.R. 2 at 37) (1 R.R. at 87

-

88 ). The court ordered the sentences to be served concurrently (C.R. 1 at 62 ) (C.R. 2
at 37). Alcaraz filed a timely notice of appeal (C.R. 1 at 67 ) (C.R. 2 a t 40)

. A motion

for new trial was filed but not presented (C.R. 1 at 77 ) (C.R. 2 at 52)

.

1 The clerk’s record will be cited as follows:

C.R. 1

...... Clerk’s record in trial cause number 1394947, 01

- 14

- 00675

- CR C.R. 2

...... Clerk’s record in trial cause number 1394948, 01

- 14

- 00676

- CR Supp. C.R. 1

...... Supplemental Clerk’s record in trial cause number 1394947, 01

- 14

- 00675

- CR Supp. C.R. 2

...... Supplemental Clerk’s record in trial cause number 1394948, 01

- 14

- 00676

- CR6 I SSUES P RESENTED

I SSUE O NE
The DNA court cost assessed against Appellant is an unconstitutional tax on Appellant.

I SSUE T WO

The written judgments should be modified to remove a Sheriff’s fee that is not supported by the record.

I SSUE T HREE
The written judgments should be reformed to correctly reflect Appellant has the right to appeal.7 S TATEMENT OF F ACTS

Alcaraz is the stepfather of the complainant E.H. (PSI at 7). While on a family
vacation, E.H.’s mother asked to use Alcaraz’s cell phone to take photos as her phone
was not charged (1 R.R. at 41). After taking photos, E.H.’s mother wanted to view

them. She scr olled through the phone and discovered several inappropriate
photographs of E.H. which had been taken on four different dates. (1 R.R. at 11

- 13,

41

- 42). E.H.’s mother identified E.H. as the subject of the photograph s based on the
clothing and the room in w hich the photos were taken (1 R.R. at 10).
The photographs showed E.H. sleeping and her clothing being moved in order
to expose her buttocks, breast and vagina (1 R.R. at 12

- 14). In one of the
photographs
, digital penetration of E.H.’s vagina could be se en (1 R.R. at 15 & 31).
Law enforcement identified the hand in the photo as belonging to Alcaraz by
comparing a scar on one of the fingers to Alcaraz’s hands (1 R.R. at 15). This
photograph formed the basis of the Aggravated Sexual Assault of a Child char ge.8 S UMMARY OF THE A RGUMENT

Alcaraz argues the judgments in each case should be modified to delete $255 in
court costs. This amount represents a $250 DNA Testing Fee pursuant to Tex. Code
Crim. Proc. art. 102.020, which this Court has recently held unconstitutional in Peraza

v. State , No. 01

- 12

- 00 690

- CR, 2014 WL 7476214 (Tex. App.

– Houston [1 st Dist.]
Dec. 30, 2014, no. pet. h.) . The remaining $5 represents a sheriff’s fee for making an
arrest without a warrant which is not supported by the record.

Alcaraz also argues the judgment should be refor med to correctly reflect he has
the right to appeal. The current judgment states “Appeal Waived. No Permission to
Appeal Granted.” However the record contains an Amended Trial Court
Certification which states the case “is not a plea

- bargain case, and the defendant has
the right of appeal” and the boilerplate waiver language in the plea papers is not
binding.9 I SSUE O NE

T HE DNA COURT COST A SSESSED AGAINST A PPELLANT IS AN U NCONSTITUTIONAL TAX ON A PPELLANT

.
Preservation of Error

Challenges to court costs can be raised for the first time on appeal and

“[c]on victed defendants have constructive notice of mandatory court costs set by
statute and the opportunity to object to the assessment of court costs against them for
the first time on appeal or in a p roceeding under Article 103.008 of the Texas Code of

Criminal Procedure

. ” Cardenas v. State , 423 S.W.3d 396, 399 (Tex. Crim. App. 2014)

.

I n a companion case decided the same day, Johnson v. State, the Court further explained

th a t because the cost bill is most likely unavailable at the time of the judgment, an
“[a]ppellant need not have objected a t trial to raise a claim challenging the bases of
assessed costs on appeal. ” Johnson v. State , 423 S.W.3d 385, 391 (Tex. Crim. App.

2014)

. Applicable Law
Both judgments contain court costs to be assessed against Mr. Alcaraz ( C.R. 1

at 62) ( C.R. 2 at 37). The clerk’s record in each case contains a bill of cost supporting
the amount noted in the judgment ( C.R. 1 at 64) ( C.R. 2 at 39). The bill s of cost show
Alcaraz was charged $250 in each case as a DNA Testing Fee ( C.R. 1 a t 64) ( C.R. 2 at
39). Tex. Code Crim. Proc. art. 102.020(a)(1) provides that “[a] pers on shall pay as a

cost of court $ 250 on conviction of an offense l isted in Section 411.1471(a)(1),10 Government Code .” Both aggravated sexual assault of a child and possession of child
pornography are offense s listed in Section 411.1471(a) (1)

. Thus the $250 cost was
properly included in the bills of cost.

However in Peraza v. State , this Court held the DNA Record Fee was not a
legitimate court cost, but was instead an unconstitutional tax

. Peraza v. State , No. 01

-

12

- 0069 0

- CR, 2014 WL 7476214 (Tex. App.

– Houston [1 st Dist.] Dec. 30, 2014, no.
pet. h. )

. In reaching this conclusion, this Court relied on Ex parte Carson , 159 S.W.2d

126, 130 (1942) , wherein the Court of Criminal Appeals found that a $1 law library fee

was “ neither necessary nor incidental to the trial of a criminal case” and as such was

“ not a legitimate ” cost of court.

In Peraza , the Court first addressed the thirty

- five percent of the funds which
are to be deposited in state highway fund. The Court determined that these funds

“ may be used for any function of TxDOT” and are not specifically limited to “ defray the
costs associated with collecting, storing, and testing DNA samples” Peraza at 6 & 7
(emphasis in original)

. After examining the TxDOT’s mission statement and the
various statutes listing TxDOT’s responsibilities, the Cou rt held that b ecause “ the
responsibilities of TxDOT are far more remote from a criminal trial than the county
law libraries which were to be used by the judges and attorneys for trial preparation in

Carson”

... it could not be “reasonably c oncluded that the po rtion of the revenue
collected through the ‘ DNA Record Fee’ and dedicated to the state highway fund11 constitutes a proper court cost to be assessed against appellant or any other criminal

defendant. ” Id. at 7.
The Court then turned to the remaining sixty

- f ive percent which is deposited in
the criminal justice planning account. Tex. Crim. Proc. art. 102.020(h). “ The criminal
justice planning account is administered by the Criminal Justice Division (“CJD”) of

the Governor's Office. Peraza at 8 citing Tex. Gov't Code Ann. §772.006(a)(2)
(Vernon 2012). Once again looking at the administering organization’s mission, the

Court determined “[t]he CJD ...uses this money to ‘[s]upport a wide range of projects
designed to reduce crime and improve the criminal and juvenile justice systems.’”

Peraz a at 9. The Court then found “ the criminal justice planning account, which is
funded by the “DNA Record Fee,” [does not ]pass[ ] constitutional muster” stating:

... the money from the criminal justice planning fund is not required to be directed to the cour ts or to services necessarily or incidentally related to criminal trials. And often times such revenue is given to programs that, as the court in Carson specifically noted, could not possibly relate to legitimate court costs. See 159 S.W.2d at 127 (costs f or training and education not legitimate court costs that may be assessed against criminal defendants).

Id. at 10.

As Mr. Alcaraz was assessed the same DNA fee that this Court has found
unconstitutional, Alcaraz requests this Court modify each judgment t o delete the $250
charge from the court costs. See Peraza v. State , No. 01

- 12

- 00690

- CR, 2014 WL
7476214 (Tex. App.

– Houston [1 st Dist.] Dec. 30, 2014, no. pet. h.) (proper remedy
for unsupported fee to modify the judgment).12 I SSUE TWO

T HE WRITTEN JUDGMENTS SH OULD BE MODIFIED TO REMOVE A
SHERIFF ’ S FEE THAT IS NOT SU PPORTED BY THE RECOR D

. Tex. Code Crim. Proc. art 102.001(a)(1) provides that a $5 court cost may be
assessed when a peace officer make s an arrest without a warrant. Tex. Code Crim.
Proc. art 102.001(a)(2) provides that a peace officer may charge $5 0 for executing an
arrest warrant, capias or capias pro fine. The c ost bills in both cases indicate Alcaraz
was assessed both a $50 fee for “serving capias” and a $5 fee for “arrest w/o
Warrant/Capias” ( C.R. 1 at 64) ( C.R. 2 at 39). One cannot be arrest both with and
without a warrant or capias. It must be one or the oth er. The record indicates a
warrant had issued at the time of Alcaraz’s arrest ( 1 R.R. at 15 ). Thus the proper fee

amount is $50 and each judgment should be modified to delete $5 fee from court

costs. See Peraza v. State , No. 01

- 12

- 00690

- CR, 2014 WL 7476 214 (Tex. App.

– Houston [1 st Dist.] Dec. 30, 2014, no. pet. h.) ( pro per reme dy for unsupported fee to
modify the judgment).

I SSUE T HREE

T HE WRITTEN JUDGMENTS SHOULD BE REFORMED T O CORRECTLY
REFLECT A PPELLANT HAS THE RIGHT TO APP EAL

. An appellate court has the power to correct and reform a trial court judgment
“to make the record speak the truth when it has the necessary data and inf ormation to
do so, or make any appropriate order as the law and nature of the case may require.”13 Nolan v. State, 39 S.W.3d 697, 698

- 99 (Tex. App.

- Houston [1st Dist.] 2001, no pet.)

citing Asberry v. State, 813 S.W.2d 526, 529 Tex. App.

- Dallas 1991, pet. ref'd)

.

Both judgment s contain the following language :
Furthermore, the following special find ings or orders apply: APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.

(C.R. 1 at 63 ) (C.R. 2 at 38)

.
The record contains several trial court certification s. On April 14, 2014, the day

Alcazar entered his guilty pleas, the court signed a certification in each case but failed
to check any of the options provided on the form. (C.R. 1 at 41) (C.R. 2 at 32). On
July 17, 2014, the day Alcaraz was sentenced, the court again signed certifications in

each case. In the sexual assault case, the trial box stati ng the defendant has the right
to appeal is checked and the box stating the defendant had waived the right to appeal

is also checked as well as having initials next to it (C.R. 1 at 65). Additionally a third
box stating the case was a plea bargain case ap pears to have been in itially checked but
marked out (C.R. 1 at 65). In the child pornography case the trial court indicated the
defendant had the right to appeal (C. R. 2 at 43)

. Finally, on January 13 , 2015, pursuant to this Court’s Order of Abatement, a

third set of certifications were filed stating the case “is not a plea

- bargain case and the
defendant has the right of appeal.” (Supp. C.R. 1 at 3 ) (Supp. C.R. 2 at 3 ).

In Evans v. State
, No. 01

- 11

- 00021

- CR, 2012 WL 1379632 (Tex. App.

– Houston [1st Dist.] Apr il 19, 2012, no pet.) (mem. op. not designated for publication)14 the First Court of Appeals modified the judg ment when faced with a similar situation.
Evans pled guilty without a plea bargain and the case was set for a presentence
investigation report. The judgment and the boilerplate plea papers said Evans had
waived his right of appeal but the trial court’s c ertification stated Evans had the right
to appeal.
The Court reformed the judgment finding the boilerplate waiver of appeal
language was not binding because it was executed before the trial court proceeded to
adjudicate guilt, it was not bargained for an d there was no recommended sentence.
These same three factors are present in Alcaraz ’s case. The plea papers and the
original trial court certification were executed prior to the court finding Alcaraz

gu ilty. 2 There is nothing in the record to indicate t he parties bargained for A l caraz to
waive his appeal and the plea papers affirmatively reflect there was no recommended

sentence (C.R. 1 at 32) (C.R

. 2 at 24). The trial court also confirmed there was no
agreed recommendation (1 R.R. at 3). Thus, Alcaraz requests this Court to correct
and reform the trial court judgment s to delete the notation “Appeal Waived. No
Permission to Appeal Granted

. ”

P RAYER

M r

. Alcaraz respectfully requests that this Court reform the judgment to reflect
reduce the court costs by $255 in each case to remove the unconstitutional DNA fee,

2 Prior to the beginning of the PSI hearing, the trial court specifically stated on the record, “There was no finding of guilt on these cases” ( 1 R .R. at 3 ).15 and the unsupported Sheriff’s fee of $5. Alcaraz also asks the Court to remove the
notation “Appeal Waived. No Permission to Appeal Granted”.
Respectfully submitt ed,

Alexander Bunin Chief Public Defender
/s/ Angela Cameron Angela Cameron State Bar No. 00788672 Assistant Public Defender Harris County Texas 1 201 Franklin 13 th Floor Houston Texas 77002 c (713) 368

- 0016

a ngela

. cameron@ pdo.hctx.net

C ERTIFICATE OF S ERVICE
I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney via hand delivery on the day the brief was filed.

/s/ Angela Cameron Angela Cameron16 C ERTIFICATE OF C OMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies
with the type

- volume limitations of Tex. R. App. Proc. 9.4(e)(i)

.

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1) , this brief

contains 2,816 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond

14 po int fon t in text and Garamond 12 point font in footnotes produced by

Microsoft Word software.

3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type

- volume limits in Tex. R. App.

Proc. 9.4(j) , may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Angela Cameron Angela Cameron